Prividna jednostepenost postupka javnih nabavki – Ustavni sud opet u ulozi „pozitivnog zakonodavca“

Abstract

The Constitutional Court recognized the constitutional appeal applicant’s right to submit an extraordinary legal remedy in the administrative dispute (judicial review procedure) – a request for reassessment of a court decision (legal remedy submitted to the Supreme Court against the decision of the Administrative Court) in the field of public procurement. One situation in which submission of this legal remedy is permitted is in matters where an administrative appeal was excluded. The Constitutional Court took the position that a request for the protection of rights, which is a regular legal remedy in the public procurement procedure, cannot be compared to the appeal in the administrative proceedings, and that, hence, filing request for reassessment of a court decision is permitted in the public procurement procedure. The Constitutional Court thus made a creative interpretative decision, which created a new legal rule. The paper examines the effects and correctness of the aforementioned decision of the Constitutional Court.